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Tuesday, November 01, 2016

Yes, You Can Change Your Vote (in some places); But It's a Bad Idea

Call it buyer's remorse: a person voted early and then regrets their choice, perhaps because of new information that is revealed about the candidates.  Maybe new evidence supposedly emerges about emails or about a candidate's apparent ties to Russia.  Can the voter change their vote?

It turns out, surprisingly, that the answer is yes in at least a few places.  Voters who have already submitted ballots in a few states may cancel those ballots to change their votes.  It's not the same as voting twice, as Donald Trump has been accused of advocating in Colorado; but it does give voters another bite at the apple.

This issue has gained salience over the past few days.  A image that had appeared on Fox News was circulating on Twitter over the weekend, in light of the James Comey letter re-elevating the issue of Hillary Clinton's emails, suggesting that voters in some states can change their early votes:

Change early vote

The Louisiana Secretary of State tweeted that the map is wrong with respect to Louisiana election law, which does not allow this practice.

But in the other states, how does this process work?  And is it a good idea?  I provide some thoughts after the jump.

The Minnesota Secretary of State's Office has this guidance on changing one's vote:

WHAT IF I RETURNED MY BALLOT AND WANT TO CHANGE MY VOTE?

You can ask to cancel your ballot until the close of business one week before Election Day. After that time, you cannot cancel your ballot. To cancel your ballot, contact the election office that sent your ballot. Your options are to have a new ballot mailed; vote in person at your local election office; or vote at your polling place on Election Day.

In Wisconsin, voters apparently have up to three chances to "correct" their ballot.  Here is how one news story describes the process:

"All the ballots are secured in the vault at city hall. We would pull that from the group. We would let the individual, the voter, vote again and document that this was their second ballot issued. We’d keep a record of that, so they would only have up to three opportunities.”

Voters in New York can seemingly also "vote twice" and have their later-filed ballot count:

If there is more than one ballot envelope executed by the same voter, the one bearing the later date of execution shall be accepted and the other rejected.  If it cannot be determined which envelope bears the later date, then all such envelopes shall be rejected.  N.Y. Election Law § 9-209(a)(i)(B).

This seems like a particularly wrongheaded idea.  Part of the goal of early voting is to minimize administrative hassles to election officials while making voting more convenient.  Allowing voters to re-do their ballots harms the first goal of administrative efficiency, while also inserting a degree of unpredictability into the process.  Although some may lament that early voting is problematic because it means that people will make their decisions without the benefit of all information leading up to Election Day, that is their choice.  They can certainly decide to wait if they want.  If they have made up their mind, however, states should not give them a do-over -- even if new information comes out.  That is, people should understand that, if they vote early, they are taking the risk that they might learn new information about the candidates or issues after they cast their ballots.  

Moreover, those who are talking about voter fraud or election rigging should oppose the ability to change one's vote. Given that most voter fraud (rare as it is) occurs through absentee balloting, it would seem that voiding or changing someone's early vote also could pose similar problems.  This weekend Donald Trump stoked unsubstantiated voter fraud fears once again by imploring his supporters in Colorado to obtain a new ballot to "make sure it gets in."  Of course, it would be illegal to actually vote twice.  But if Trump turns his attention to the states where changing one's vote is possible, it could sow even more doubt about the election system -- especially if people do start trying to change their votes at the last minute or begin coercing others to do so.  

I think early voting is a great idea to increase the convenience of voting -- although I would also support a uniform Election Week.  But we should not allow voters to change their votes after they cast their ballots.  The harms simply outweigh the benefits to this small subset of people who might take advantage of this process.

The Comey letter already destabilized the campaign at the last minute.  The alleged Trump-Russia ties might do the same.  We should not let these "October surprises" also destabilize the election process itself for those who already made up their minds.

Posted by Josh Douglas on November 1, 2016 at 09:27 AM in Law and Politics | Permalink

Comments

Adam,

My primary objections are administrative inefficiency and opening up the process to claims (real or imagined) of voter fraud. I suppose I can be convinced, on a normative theory of democratic representation or participation, that re-voting could be a good idea (although I'm not there yet), but I don't think you can divorce it from the practical realities of how it would work.

Posted by: Josh Douglas | Nov 1, 2016 11:07:29 AM

Thans for replying.

I'm not sure your example clarifies the objection for me. The simple response is, "Because the election is over at that point, but it sure isn't over before that point." I guess I'm trying to get at whether the objection to pre-Election Day revoting is something other than inefficiency - an inefficiency that appears to be pre-date voters' (perhaps) unreasonable demands of the voting process. While we don't have the option of magical waving away those inefficiencies, re-voting in this fashion strikes me as a problem we are going to have to deal with if we are actually interested in expanding the temporal opportunity to vote.

How important is it? I remember surveys that suggested Bush 43 lost 3% of the vote due to the last-minute revelation of a drunk-driving conviction 15-20 years earlier. You'll no doubt recall that Bush and Gore were separated by about .5% of the national vote total. As early voting grows in importance, the likelihood that there will indeed be systemic benefit to last-minute corrections will grow also,

Posted by: Adam Scales | Nov 1, 2016 10:27:51 AM

Thanks. Someone mentioned this and wasn't sure about it.

I agree with the concerns about this practice (NY specifically doesn't allow early voting generally, so for my state, we are talking about a more limited policy) but understand the first comment thinking that maybe a "week" (11/9 is more responsive there) and a "month" would be treated differently.

I am not a big fan of early voting occurring over that long of a span in the first place, but at least as to the reference to modern consumer norms, very well can see the pressure cited. Not ideal, but can see it.

Posted by: Joe | Nov 1, 2016 10:22:12 AM

Adam,

Thanks for your thoughtful comment.

But I'm still not sure why this process provides a meaningful benefit that we should accommodate, in the grand scheme of things. (I obviously recognize the benefit to the individual voter who takes advantage of it.) Suppose new information comes out on November 9. We won't say that people can re-vote at that point. Why allow it at an earlier time, when there are tangible inefficiencies that the process creates? My guess is that these inefficiencies are why most states do not allow someone to change their vote after submitting their ballot.

Posted by: Josh Douglas | Nov 1, 2016 9:52:34 AM

Josh,

I'm not sure whether this is a bad idea. Obviously, it's not very efficient, but it brings into stark relief the trade-offs implicit in lengthy early voting periods. If we adopt your Election Week idea, and restrict all voting to that time (apart from absentee balloting, I suppose), one could say that the small possibility of voter error or change of heart shouldn't require us to bend over backwards to accommodate it. Of course, that's not the same as affirmatively arguing that we should not do so. But, if people are voting over an entire month or more, I think there will be considerable pressure to permit voters to cancel their early votes.

Perhaps the uncertainty that concerns you rests on the general creakiness of our voting and registration system. Suppose we had robust voter ID (bear with me here), plus secure and reliable absentee ballot tracking and handling. Could we then afford the inefficiency of do-overs? In a world increasingly governed by one-click shopping AND near-effortless cancellation and returns, I wonder changing norms will move the goalposts in the fairness/efficiency tradeoff.

Posted by: Adam Scales | Nov 1, 2016 9:44:29 AM

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